How ADA compliance affects a venue’s capital improvement plan

Stadium operators know a flexible and comprehensive capital improvement plan is critical for ensuring that the facility is providing a safe and enjoyable experience for patrons while at the same time maximizing profits. However, developing and implementing an effective capital improvement plan can be a complicated process. Even though the plans are developed relying on an assumption that economic and legal standards will remain constant during the plan’s term, changes in law, technological innovations, unexpected events and changes in a stadium’s operating needs may force an operator to adapt its plan.

A revised legal standard that is forcing stadium operators to re-evaluate their capital improvement plans is Title III to the Americans with Disabilities Act and its companion Title III accessible design standards (the “2010 Standards”). While the revised Title III affects many different aspects of a stadium’s operations — from ticket sales to assistive listening device availability policies — it is in the area of construction renovation that Title III and the 2010 Standards pose the greatest logistical and economic challenges for stadium operators.

Stadium elements: ADA compliance in a stadium is evaluated on an element-by-element basis. An element is a specific building component or attribute. Examples of elements include elevators, parking spaces, swimming pools, doors and doorways, and drinking fountains. A list of elements can be found in the ADA’s 2010 Standards of Accessible Design Manual.

Alterations: An operator’s need to comply with the 2010 Standards in connection with a renovation is dependent, in part, upon whether the renovation is considered an alteration, and if so, when that alteration begins. An alteration means any change that affects (or could affect) the usability of an element. Examples of alterations include remodeling, rehabilitation, historic renovation and reconstruction. Normal maintenance, reroofing and painting are examples of nonalterations. For the purpose of determining when an alteration began, alterations that require building permits begin on the date the building permit is approved by the applicable authority. Alterations that do not require building permits begin on the date the alteration work begins.

Compliance date: The date a stadium element must be in compliance with the 2010 Standards depends on a number of factors:

• Compliance with the 1991 version of Title III standards (the “1991 Standards”). Is the element in compliance with the 1991 Standards currently?

• Does the element have its own specific guidelines in the 2010 Standards? If so, does the element have a corresponding set of guidelines in the 1991 Standards?

• Future alterations. Is the element going to be altered in the future?

With those factors in mind, the rules regarding compliance dates are below.

• Stadium elements altered at any time prior to March 15 may comply with either the 1991 Standards or the 2010 Standards. If multiple elements are being altered at one time, the stadium operator must choose one set of standards and apply that set of standards to all elements being altered.

• Stadium elements altered on or after March 15 must comply with the 2010 Standards.

• Note: If a stadium element is addressed in the 2010 Standards but is not addressed in the 1991 Standards, stadium operators were required to bring that element into compliance with the 2010 Standards by March 15. There are a number of elements that fall into this category, including golf facilities, miniature golf facilities, swimming pools, spas, exercise machines and amusement rides.

Compliance exemptions: The ADA has certain guidelines under which a stadium operator can reduce or defer the scope of renovations required under the ADA. In general, when considering a stadium renovation, a stadium operator should ask the following questions:

• Would making the renovation fundamentally alter the services or goods provided by the stadium?

• Would making the renovation compromise the stadium’s safety?

• Would making the renovation constitute an undue burden (a significant difficulty or expense) on the stadium operator?

• Is making the renovation not readily achievable (easily accomplishable and able to be carried out without much difficulty or expense)?

If the answer to any of those questions is yes, then the stadium operator may have grounds upon which to argue an exemption to compliance requirements. However, stadium operators should remember that exemptions are very subjective. Answering yes to one of the questions above is not a “get out of renovation free” card. Instead, it is more of a defense against a future claim that the stadium is out of ADA compliance.

Consequences of noncompliance: Failure to comply with the ADA can subject a stadium operator to lawsuits from public and private entities, equitable remedies, monetary damages, and fines.

The claims and dollar amounts at play are alarmingly high. Consider, as an example, the U.S. Equal Employment Opportunity Commission’s ADA litigation history over the past 10 years. Starting in fiscal year 2001 and ending in fiscal year 2011, the EEOC filed 576 ADA-related claims against third parties. Of those 576 claims, 526 were resolved, with the EEOC securing approximately $74 million in awards for plaintiffs. Of particular note is that 2011 represented both the highest number of ADA claims filed and highest amount of awards secured over this 10-year period. This suggests that the ADA revisions are triggering a new wave of litigation (both warranted and unwarranted). Consider also that these stats likely pale in comparison with the number of private ADA-related suits that have been filed over the same amount of time.

Stadiums have not been immune from ADA-related claims. In November 2010, plaintiffs brought suit against the city of Sacramento and the Maloofs (owner of the NBA’s Sacramento Kings), alleging civil rights violations as a result of improper barriers in Arco Arena’s (now Power Balance Pavilion) parking lots, ticket stands, main entrance, concession stands and seating. In the lawsuit, the plaintiffs sought money damages and equitable remedies (specifically, renovations to Arco Arena to address the alleged improper barriers). The case is pending in federal court.

Adjusting or developing a capital improvement to accommodate the revised construction requirements of Title III and the 2010 Standards presents certain challenges that require coordination between operators, architects and attorneys to identify the potential options to minimize implementation costs and negative operational impacts while simultaneously considering what if any revenue-generating opportunities may arise. n

Irwin Raij (iraij@foley.com) is a partner at Foley & Lardner LLP and co-chair of its sports industry team. Erick Harris (esharris@foley.com) is an associate at Foley & Lardner LLP and a member of the firm’s sports industry team.